6 P.2d 30 | Or. | 1931
In Banc. The complaint alleges that prior to November 3, 1926, the plaintiff had never been in the defendant municipality, was entirely unfamiliar with its streets and with the fact that Virginia street, one of its thoroughfares, so connected with the municipal wharf that, in the darkness of night, an automobilist, especially a stranger, could readily drive from the one *152 on to the other without notice that he was upon the wharf with the deep waters of the bay a few feet ahead. The complaint further alleges that the defendant municipality and its councilmen, who are also defendants, erected no barricade to prevent an automobilist from proceeding over the edge of the wharf into the water, and that they wholly failed to install any warning lights or other devices to apprise the automobilist of the danger ahead. Continuing, it alleges that November 3, 1926, at an hour when the night was unusually dark, due to rainfall and fog, the plaintiff entered the city driving his automobile; that he mistook Virginia street for another thoroughfare along whose course he had intended to drive; that he proceeded down Virginia street on to and across the wharf unaware of his mistake until he was precipitated from the edge of the dock into the deep water below. After alleging injury to the plaintiff's person, to his automobile and to some articles of personal property in the car, the complaint demands judgment for $5,906.30. The answers deny all charges of negligence, and, in addition, the city's plea sets forth the following affirmative defenses: (1) negligence upon the part of the plaintiff; (2) the plaintiff was a trespasser or a bare licensee upon the wharf and his injury was not due to any willful or wanton conduct of the city; (3) the charter exempted the city from all liability for injuries sustained through "the defective condition of any sidewalk, street, avenue, boulevard, alley, court or place"; (4) the municipality's charter authorized it to construct and maintain this wharf; and (5) before the wharf was built the city council exercised due care in the selection of a competent engineer whose plans and designs were later adopted by the council and were faithfully adhered to in the erection of the structure. *153 The reply put in issue the foregoing new matter. From a judgment based upon a verdict in favor of the plaintiff and against the city only, the latter has appealed and presents fourteen assignments of error. We shall first consider the assignments of error based upon the rulings of the circuit court which denied the city's motion for a directed verdict and which entered judgment in favor of the plaintiff upon the verdict. A brief summary of the evidence favorable to the verdict is deemed advisable.
Prior to November 3, 1926, the plaintiff, who was an intelligent young man, 26 years of age, had never been in the city of North Bend and was entirely unfamiliar with its streets and wharf. Upon that day he left Eugene in his automobile with the intention of going to Giddon's Camp at Lakeside across the bay from North Bend. He arrived in the latter city about 6 o'clock p.m. and stopped for a few minutes at a restaurant where he ate dinner. At that place he was informed that the ferry which he would be required to board in order to cross the bay on his way to Lakeside had ceased operations for the day, and then concluded that he would return to Marshfield about three miles distant. In going from Marshfield to North Bend he drove along Waterfront road which is paved with bitulithic pavement and which parallels a railroad track, but nowhere crosses it. Waterfront road becomes Stanton avenue as it enters North Bend and the latter thoroughfare terminates when it reaches Washington avenue whose course is at right angles to Stanton avenue. At this point a fence, painted with light-colored paint, warns the automobilist of the termination of Stanton avenue and a sign directs him to turn to the left if he desires to proceed to the business section *154 of North Bend. The plaintiff turned to the left and drove two blocks up Washington avenue to Sherman avenue, which is the principal street of the city, and then turned to his right down Sherman avenue until he had gone one block and had crossed Virginia street. Here he found the aforementioned restaurant and stopped. After having eaten his meal and having decided to return to Marshfield for the night, he drove along Sherman avenue a block or two more and then reversed his direction with the intention of retracing his course back to Marshfield. The evidence shows that the night was dark and that the air was charged with fog to such an extent that travelers had very little vision. The plaintiff testified that he could see only twenty feet ahead, and that when he came to Virginia street he turned to his left, having mistaken it for Washington avenue. He added that his lights were burning, that he was driving at a speed of not more than five or eight miles per hour, and that he was looking alertly for the fence he had seen at the place where Stanton avenue ended. Seven hundred seventy-four and one-half (774 1/2) feet directly down Washington avenue, which was paved and improved for vehicular traffic, was the approach to the municipal wharf. At the edge of the wharf, which was 72 feet wide, there was no barricade, gate or sill to prevent a car from running off of it into the waters of the bay, thirty feet deep at that point. There were no warning lights, signs, or other indications of danger to apprise an automobilist of what lay ahead. The distance from the intersection of Sherman and Washington avenues to Stanton and Washington avenues was 480 feet. The character and width of the hard-surfaced pavement along Virginia street was practically the same as that along Washington avenue for a distance of 460 feet. *155 The 460-foot stretch of bitulithic pavement along Washington avenue, just mentioned, was followed by a section of plank roadway 171 1/2 feet in length and somewhat wider than the preceding bitulithic pavement. It is crossed by two railroad tracks, and is continued by another section of plank roadway 143 1/2 feet long and 24 feet wide, at the conclusion of which is another section of plank roadway 153 1/2 feet long and 24 feet wide which was constructed by the city upon land conveyed to it in fee simple. It constitutes the approach to the municipal wharf and is regarded as a portion of that landing-place. It is conceded that the city possessed sufficient power to enable it to maintain the wharf. As the plaintiff left the 135 1/2-foot section of plank road just described, he came directly upon the main structure of the wharf which is 389 feet long and 72 feet wide. The longer dimension is at right angles to the approach and parallels the water's edge. The approach met the wharf at approximately its middle point. To the left, and about 30 feet from the point where the approach enters the wharf, was a warehouse structure; ahead, the way was clear; to the right was open space, free from all structures and other objects. Thus when the plaintiff left the approach and came upon the wharf he had only 72 feet more to go until he was at the dock's edge with the deep water below. As previously stated, there was no barricade or other obstruction to impede his progress and no sign, light or any other device to signal danger. He proceeded, still believing that he was upon the course which would return him to Marshfield, and, after having gone the additional 72 feet, was hurled into the waters of the bay. The injury which he sustained is the basis of this action. *156
The two assignments of error now under consideration are based upon the contentions: (1) that a charter provision of the city exempted it from this liability; and (2) that before erecting the wharf the city exercised due care in selecting an engineer to plan the installation; that after he had submitted his designs the city council approved them and later built the structure in precise conformity to the plans.
The charter provision above mentioned is as follows:
"No recourse shall be had against the city for damage or loss to person or property suffered or sustained by reason of the defective condition of any sidewalk, street, avenue, boulevard, alley, court or place, or by reason of the defective condition of any sewer, or by reason of any defective drainage, whether any of said defects originally existed, or whether they were occasioned by construction, excavation or embankment; nor shall there be any recourse against the city for want of repair of any sidewalk, street, avenue, boulevard, alley, court or place, or by want of repair of any sewer; nor shall there be any recourse against the city for damage to person or property suffered or sustained by the reason of accident on sidewalk, street, avenue, boulevard, alley, court or place, or by falling from an embankment thereon or into any excavation therein but in such case, the person or persons on whom the law might have imposed the obligation to repair such defect in the sidewalk, street, or public highway, or in the sewer, and also the officer or officers through whose official negligence such defect remains unrepaired shall be jointly and severally liable to the party injured for the damage sustained."
Section 5-502, Oregon Code 1930, authorizes the institution of actions against municipalities in their "corporate character."
The defendant seems to believe that the place which the plaintiff claims was dangerous is within the *157
protection of the above charter provision. It will be observed that the plaintiff had been operating his car upon the wharf premises for 225 1/2 feet before he fell into the water. Obviously, the city's contentions can not be sustained unless the place described by the plaintiff was one of those mentioned in the above charter provision. Apparently, the city believes that the word "place" found in the above provisions is applicable to the wharf. The principle of ejusdem generis frequently employed in the construction of statutes suggests that where general words follow the enumeration of particular classes of persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated. The rule finds support in the conviction that if the legislature had intended the general words to be used in their unrestricted sense it would have made no mention of the particular classes: Moen v. Aitken,
The second subdivision of the above contention submits that since the evidence shows that the city exercised due care in the selection of the engineer who designed this wharf, and indicates that it constructed the wharf in conformity with his plans, it can not be *160
liable even though the structure was not properly built. This argument is founded upon the proposition that the selection of plans for the improvement was the exercise of a judicial function. It is true that section, 565, Elliott, Roads and Streets (3d Ed.), relied upon by the appellant, contains general language capable of supporting a conclusion that the rule extends to the construction and maintenance of public works of a proprietary or corporate character. But a consideration of the numerous authorities cited by the writer readily dispels all doubt and shows that the rule is applicable only to the construction and maintenance of streets, sidewalks, sewers, etc.; in other words, to works of a governmental character. We have previously expressed our conclusion that the operation of this wharf constituted the exercise by the municipality of a purely corporate function; that is, it was the doing of something for the commercial advantage of the community. It is well settled that when a municipal corporation exercises a corporate function as distinguished from its governmental powers, it stands upon the same footing with private corporations and is held to the same responsibility as the latter for injuries resulting from its negligence: Butler v. City of McMinnville,
The city next argues that the circuit court erred when it refused to instruct the jury as follows: "If you find that the plaintiff drove out and upon the wharf of the defendant, the city of North Bend, and therefrom into the waters of Coos Bay and that at the time he did so, he was upon said wharf without the invitation, express or implied, of the defendant city of North Bend, nor with its consent, nor on any business connected with said wharf, he was at that time a bare licensee." As will be observed from the evidence previously reviewed, Virginia street led directly to this wharf and the latter was only 775 feet from the center of the city. No obstructions or gates prevented free access to the wharf. No signs forbade the public from entering upon any part of it. Although the members of the city council knew that the wharf was being daily used by the public no effort was made to obstruct access to it. For instance, one of the councilmen was asked: "And you knew it was being traveled by the public?" A. "Yes." Another one was asked: "And you knew this Virginia street extended and was used by automobiles and trucks and pedestrians?" A. "Yes, sir." Q. "Going to the dock and *162
back?" A. "Yes, sir." Q. "You knew of no sign or anything notifying a stranger or anyone that this street led to the dock?" A. "No, * * *." An invitee is one who possesses an invitation, either express or implied. The following is quoted fromKruntorad v. Chicago R.I. P.R. Co.,
Since we have concluded that the evidence was capable of sustaining a finding that the plaintiff had been invited upon the wharf, it necessarily follows that it was the duty of the city to exercise reasonable care for his safety: Lange v. St. JohnsLumber Co.,
The city argues that since the jury returned a verdict in favor of the councilmen, it necessarily follows that the city also must be discharged, although the verdict was adverse to it. Where a principal is liable for the tortious negligence of his agent, the latter is both jointly and severally liable with him: Shearman Redfield on Negligence (6th Ed.), section 122. Since the liability is a joint and several one, it would be as proper to conclude that a verdict against the city demanded a judgment against both principal and agent as to conclude that a verdict against the principal, but in favor of the agent, demanded a judgment favorable to both. It has been held in situations analogous to the present one, that is, where an action of negligence was instituted against a principal and agent, with a verdict against the one but favorable to the other, that a judgment entered upon the verdict must be sustained: IllinoisC.R. Co. v. Murphy,
The city argues that the trial court erred when it declined to instruct the jury thus: "If you find that the defendant city constructed and maintained its wharf in the customary, ordinary and usual manner in which wharves under similar circumstances are constructed and maintained, then I instruct you that the defendants can not be charged with negligence if such wharf was so constructed and maintained."
The court instructed upon the effect of the evidence showing custom as follows: "It would be proper for you to consider evidence of customary methods under similar conditions, and you should give such evidence, if any, such weight as you may find it to merit along with all of the other evidence in the case in determining what was reasonable care in this case. In weighing such evidence you should, of course, consider the similarity or dissimilarity of the conditions in other cases compared to this case. Custom is some evidence that the customary practice is reasonably careful practice, but where there is direct evidence on the issue, custom alone would not be conclusive as to what is reasonably prudent practice."
We quote from Shearman Redfield on Negligence (6th Ed.), § 12a: "The custom of others engaged in the same pursuit, though generally admissible in evidence by either party as tending to show negligence or the contrary, is not conclusive. `What usually is done, may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.' And it has been held that evidence of the usual *165 method of doing the particular business may be received without such evidence as is in general necessary to establish a custom."
From Thompson on Negligence (White's Supplement), § 3777, we quote: "The Supreme Court of the United States has said that `What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not'."
From 45 C.J., Negligence, p. 706, § 87, we quote: "The more generally accepted view, however, is that customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence, or fix a standard by which negligence is to be gauged. The standard of due care is such care as a prudent person would exercise under the circumstances of the particular case, and conformity to customary or usual conduct or methods can not amount to more than a circumstance to be considered together with other circumstances of the care in determining whether due care has been exercised."
From Richardson v. Klamath S.S. Co.,
From Myrtle Point Transp. Co. v. Port of Coquille River,
We have considered the proposition of law embraced in this assignment of error at length because of the fact that a statement in Oregon Box, Etc., Co. v. Jones Lumber Co.,
Appellant complains because the trial court did not read to the jury the city's requested instruction upon contributory negligence and its effect. The instruction given was comprehensive and incorporated every material feature of the one suggested by the city; in fact, appellant's dissatisfaction seems to be with the verdict rather than with the instruction. Whether the plaintiff was guilty of contributory negligence was a question of fact for the jury. This assignment of error possesses no merit.
We have carefully considered all other assignments of error, but find them to be without merit and they present no occasion for comment.
It follows that the judgment of the circuit court will be affirmed. *167
